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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

21 FLRA No. 63
NATIONAL WEATHER SERVICE
SILVER SPRING, MARYLAND
Respondent
and
NATIONAL WEATHER SERVICE EMPLOYEES
ORGANIZATION (MEBA/AFL-CIO)
Charging Party
Case No. 7-CA-40108
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
the unfair labor practices alleged in the complaint, and recommending
that it be ordered to cease and desist therefrom and take certain
affirmative action. Thereafter, the Respondent filed exceptions to the
Judge's Decision and the General Counsel filed an opposition thereto.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommendations only to the extent
consistent herewith.
The complaint alleges that the Respondent, National Weather Service,
violated the Statute when, in October 1981, it unilaterally implemented
the use of an instructor evaluation sheet to evaluate unit employees at
its National Weather Service Training Center (NWSTC) in connection with
a critical element of their performance standards without first
notifying the Charging Party and affording it an opportunity to bargain
over the impact and implementation of such change. The Judge concluded
that the Respondent's implementation of the use of such form was a
violation of the Statute. The Authority disagrees.
The Authority finds that the General Counsel has failed to sustain
the burden of proving that the Respondent unilaterally changed a
condition of employment without notifying and bargaining with the
Charging Party, as alleged in the complaint. The facts are essentially
not in dispute. As found by the Judge, it had long been the practice of
NWSTC supervisors to conduct in-class evaluations of instructors. Such
practice allowed supervisors to use whatever methods they wished to
accomplish these evaluations, including the use of "cuff" records,
personal notes, "Sample Guidelines," forms such as an "Observation
Report" (OR) and a lesson evaluation sheet, as checklists for recording
such evaluations. Supervisor James Nelson developed the form at issue
here, the Instruction Evaluation Sheet (IES), because he believed the OR
form to be incomplete and not in the exact form he wanted to use. He
distributed copies of the IES to some of the other supervisors, and
started to use the form himself in October 1981. The Respondent
thereafter continued to allow supervisors to use any or all of the above
tools to record evaluations of instructors.
In the Authority's view, the General Counsel has not shown that the
nature of the supervisory evaluations or the criteria to be applied in
evaluating instructor performance changed because Nelson (and possibly
other supervisors) began using the IES form. Although the IES had a
different format and was more specific than the OR, the same concepts of
classroom presentation and delivery techniques were measured. Thus, the
record also shows that, in developing the IES form, Nelson used the OR
form as a guide, and the IES conformed exactly to the rating elements
set forth in the "Sample Guidelines." Additionally, the record indicates
that, at all times material herein, there was no change in the
Respondent's policy of permitting individual supervisors to use any form
to record their observations of the instructors' in-class performance.
The Authority therefore concludes that it has not been demonstrated
that there was a change in unit employees' conditions of employment
caused by the distribution and use of the IES. Consequently, the
Respondent was under no obligation to notify or bargain with the
Charging Party concerning the use of such form. Thus, no violation of
section 7116(a)(1) or (5) of the Statute has been established, and we
shall order that the complaint be dismissed. See Social Security
Administration, Baltimore, Maryland, 19 FLRA No. 79 (1985). See also
United States Department of the Treasury, Internal Revenue Service,
Chicago, Illinois, 13 FLRA 636 (1984).
ORDER
IT IS ORDERED that the complaint in Case No. 7-CA-40108 be, and it
hereby is, dismissed in its entirety.
Issued, Washington, D.C., April 24, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 7-CA-40108
NATIONAL WEATHER SERVICE, SILVER SPRING, MARYLAND
Respondent
and
NATIONAL WEATHER SERVICE EMPLOYEES ORGANIZATION
(MEBA/AFL-CIO)
Charging Party
George E. Maden, Esquire
For the Respondent
Cathy A. Auble, Esquire
Joseph Swerdzewski, Esquire
For the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
Statement of the Case
This decision concerns an unfair labor practice complaint issued by
the Regional Director, Region Seven, Federal Labor Relations Authority,
Denver, Colorado against the National Weather Service, Silver Spring,
Maryland (Respondent), based on a charge filed by the National Weather
Service Employees Organization (Charging Party or Union). The complaint
alleged, in substance, that Respondent violated sections 7116(a)(1) and
(5) of the Federal Service Labor-Management Relations Statute, 5 U.S.C.
Section 7101 et seq. (the Statute), by unilaterally implementing on or
about October 1981, the use of an instructor evaluation sheet to
evaluate unit employees in connection with a performance appraisal
critical element without first notifying the Union and affording the
Union an opportunity to bargain over the impact and implementation of
such change. The complaint further alleged that the Union first
discovered the unilateral change on or about September 1, 1983.
Respondent's answer denied the unfair labor practice alleged in the
complaint.
A hearing was held in Kansas City, Missouri. The Respondent, and the
General Counsel were represented by counsel and afforded full
opportunity to be heard, adduce relevant evidence, examine and
cross-examine witnesses, and file post-hearing briefs. Based on the
entire record, /1/ including my observation of the witnesses and their
demeanor, I make the following findings of fact, conclusions of law, and
recommendations.
Findings of Fact
In approximately May 1981, the Union was certified as the exclusive
representative of a nationwide consolidated unit of Respondent's
employees. Respondent's National Weather Service Training Center
(NWSTC), Kansas City, Missouri, which is part of the consolidated unit,
is charged with the responsibility of providing training programs for
Respondent's employees. The Training Center is divided into two
branches, only one of which, the Engineering Branch, is at issue in this
case. There are approximately 16 instructors in the Engineering Branch.
The nonsupervisory instructors are part of the bargaining unit.
Instructor Michael Silvestri has served in various representational
capacities for the Union on behalf of the Training Center employees from
the Union's certification to the present and has been the only Union
official empowered to receive notice from Respondent's agents concerning
matters affecting, and to bargain on behalf of, the Training Center
employees. Respondent has been aware of Silvestri's authority to
receive notice and to bargain on behalf of the Union.
Prior to October 1981, there was a longstanding NWSTC practice of
conducting in-class evaluations of instructors. Supervisors, or program
instructors as they were known after the reorganization of 1981, were
free to use whatever methods they wished to accomplish the in-class
evaluations. Some used "cuff" records, or personal notes, others used
forms as a checklist for the evaluations.
Since approximately 1973, a form entitled, "Observation Report" (OR)
had been available for supervisory use. The OR was an optional form
which was originally issued by the Federal Aviation Administration. The
OR is a one-page document horizontally printed on both sides. The top
of the front page has a space for the name of the instructor and the
lesson observed. The remainder of the front page is divided into three
vertical blocks. The remainder of the front page is divided into three
vertical blocks. The left block lists the following items:
Identification and Clarification of Objectives, Development and
Maintenance of Interest and Motivation, Evaluative Techniques, Lesson
Development, Provision for Student Application and Delivery Techniques.
The middle block contains a five-element evaluation system (outstanding,
excellent, good, satisfactory and unsatisfactory), along with blank
spaces for checking the rating for each item. The right block has blank
spaces for comments. On the back, the top-third of the OR contains a
continuation of the three-block pattern: Summarization Techniques,
Utilization of Training Aids and Materials, and Total Instructional
Effectiveness. The middle third is a blank space entitled
Recommendations for Development. The bottom third sets forth the
"adjective rating" and a comparative description of the five rating
elements.
Also available for supervisory use during this period was a document
entitled, "Sample Guidelines," which was also obtained from the Federal
Aviation Administration. This document set forth standards for use with
a lesson evaluation sheet. Most of the specific rating elements set
forth in these guidelines were not identical to those set forth in the
OR.
Although the record reflects that the OR and sample guidelines were
available for use, unlike the Instructor Evaluation Sheet (IES), to be
discussed later, there is only hearsay evidence in the record of any
actual use of the OR form. It was reportedly not retained by the
supervisors.
Since October 1981, instructors have been evaluated on their
performance on an annual basis under a system known as the General
Workforce Performance Appraisal System or GWPAS. Of the performance
elements expected of instructors, one of the critical elements is
instruction which consumes approximately 40% of an instructor's time.
During June 1981, James D. Nelson, a program instructor-supervisor,
developed an Instruction Evaluation Sheet (IES) to evaluate instructors.
He used the available OR form as a guide, but believed the OR to be
incomplete and not in the exact form he wanted to use. In the process
of developing the IES form, Nelson first made nonsubstantive changes in
the sample guidelines. Then he made the IES conform exactly to the
rating elements set forth in the guidelines.
The IES is a one-page document horizontally printed on both sides.
The top of the front page has a space for the name of the instructor and
the course being observed. The remainder of the front page is divided
into three vertical blocks. The left block lists the following items:
Initial Readiness, Statement of Objectives, Ability to Explain Subject,
Development and Stress of Key Points, Use of Questioning Techniques, Use
of Training and Class Participation and Summarization Techniques. The
middle block contains a five-element evaluation system (outstanding,
very good, average, fair, and poor), along with blank spaces for
checking the rating for each item. The right block has blank spaces for
comments. The back of the IES contains, in addition to the brief
continuation of the three-block pattern from the front page (Voice,
Diction, Delivery and Enthusiasm, Appearance, Mannerisms), a large blank
space for summary comments, as well as the rating standards (numerical
score ranges and description of each range), and a space for the
supervisor's signature.
Neither the IES nor the sample guidelines used the same format as the
GWPAS. The same concepts of classroom presentation and delivery
techniques are measured, but the IES is more specific, particularly in
terms of specific delivery techniques. The IES rating system uses
categories of outstanding, very good, average, fair and poor which are
achieved by attaining the appropriate numerical score within a range of
scores identified on the back of the IES form. The GWPAS uses
categories of outstanding, commendable, satisfactory, minimally
satisfactory and unsatisfactory which are achieved by attaining a
certain proportion of the Exceeded, Met and Not Met ratings for all of
the performance elements listed in the GWPAS. The use of the IES can
result in an evaluation which would be different than an evaluation
reached by using the GWPAS without reference to the IES. The IES and
the GWPAS are two different evaluation systems which concern the
critical element of instruction.
Nelson distributed copies of the IES and its sample guidelines to at
least three of the five other program instructors/supervisors at the
Training Center, including the two other supervisors in the Engineering
Branch. The IES was first used by them or him in October 1981. Nelson
evaluated five different unit employee/instructors by using the IES, and
at least two of these instructors were twice evaluated by Nelson using
the IES. Within a few days after Nelson completed the IES concerning a
particular instructor, he would give a copy to that instructor, discuss
the ratings given to the instructor, and make suggestions for
improvement. Such in-class evaluation occurred on an irregular basis.
Richard F. Myers, as director and Respondent's principal agent at the
Training Center, was aware of the development of both the IES and sample
guidelines and condoned their use. It is undisputed that Respondent
never notified the Union of the institution of the IES and Sample
Guidelines prior to its implementation in October 1981.
On September 1, 1983, Nelson evaluated Silvestri by using the IES.
After Silvestri reviewed the IES, he told Nelson that he had never seen
that form and that he was unaware of the procedures to be used in
connection with the IES or the areas in which he was to be evaluated.
Nelson agreed and tore up Silvestri's IES. This was the first time that
Silvestri saw the IES.
By letter dated October 21, 1983, Respondent advised the Union's
National President, Leo Harrison, of Respondent's intent to revise the
IES and Sample Guidelines which, it stated, "is used to rate instructors
in the classroom . . . . " (G.C. Ex. 7). Respondent concedes that this
was the first time that it gave the Union any notice concerning any form
of the IES or its use. Sometime after receiving a copy of the proposed
revisions, Silvestri realized the connection between the proposed
revision and the IES given to him by Nelson in September. Based on this
realization, Silvestri sent a letter dated November 18, 1983, to
Respondent objecting to the proposed revision because the Union had
never been notified of the initial IES implementation.
The Union has concerns as to how the IES would be used in connection
with an instructor's rating under GWPAS or otherwise, the frequency of
use, application to the style of training in engineering, whether the
instructor would be notified in advance, and what consideration would be
given to such matters as an instructor's first time teaching a course,
or having a group of difficult students, or of the rating instructor's
familiarity with the course.
Discussions, Conclusions and Recommendations
The General Counsel contends that Respondent's implementation of the
IES in October 1981 was a unilateral change in conditions of employment
of unit employees without prior notice or an opportunity to bargain
being afforded to the Union, thus violating sections 7116(a)(1) and (5)
of the Statute. The General Counsel asserts that the impact and
implementation of the IES, which had a reasonably foreseeable impact on
unit employees, was negotiable.
Respondent defends on the basis, inter alia, that the use of the IES
was not a departure from longstanding practice of allowing individual
supervisors to accomplish in-class evaluation by use of forms, notes, or
other methods; the changes made to the pre-existing form were not
substantive changes giving rise to a bargaining obligation; and the IES
had no impact, or de minimus impact, on bargaining unit employees. /2/
The evidence establishes that the implementation of the IES was a
change in conditions of employment. There is little persuasive evidence
of actual use of the OR form or FAA sample guidelines on the engineering
side. Moreover, the specific items evaluated were different than the OR
previously available for use. Initial readiness, class participation,
and personal elements,such as voice, diction, enthusiasm, appearance,
and mannerisms, were not on the OR form. Aside from the different
descriptive words used, the IES rating system has a numerical score
range within which an instructor must fall in order to receive a
particular rating. The OR rating system was merely descriptive, to
receipt of any given score on the OR was strictly subjective. It is
concluded that the creation of the IES was a major alteration of the OR,
with additions of several job-related evaluation considerations and a
new rating system. Accordingly, especially in light of the fact that
the IES was specifically to be used in conjunction with the GWPAS which
did not come into existence until October 1981, this change cannot be
construed as a mere reaffirmation of existing policy.
The IES had an impact, or reasonably foreseeable impact, on unit
employees. I cannot accept Respondent's position that the terms of the
GWPAS, sample guidelines, and the evaluation forms all conveyed the same
meaning, or that the in-house evaluation is an insignificant aspect of
instructor evaluation. As noted, the Union had concerns as to just how
the IES would be used, the frequency of use, application to the style of
training in engineering, whether advance notice would be given, and what
consideration would be given to such matters as an instructor's first
time teaching a course, or having a group of difficult students, or of
the rating instructor's familiarity with the course.
A performance appraisal system is clearly an appropriate matter for
bargaining. National Treasury Employees Union and Department of the
Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), enforced sub nom
National Treasury Employees Union v. Federal Labor Relations Authority,
691 F.2d 553 (D.C. Cir. 1982). While the establishment of performance
standards or the identification of critical elements is not bargainable,
procedures and adverse impact on unit employees due to these matters are
negotiable. Department of the Air Force, Air Force Systems Command,
Electronic Systems Division; 14 FLRA No. 63, 14 FLRA 390 (1984);
Environmental Protection Agency, 16 FLRA No. 87 (1984). For example,
where a union proposed that management be required to notify employees
regarding which performance elements would be subject to appraisal, the
Authority held that the proposal was negotiable. American Federation of
Government Employees, Local 3028 and Department of Health and Human
Services, Public Health Service, Alaska Native Health Service, 13 FLRA
No. 112 (1984). Likewise, a proposal to give notice to employees
concerning which performance elements are deemed critical is a
negotiable matter. Alaska Native Health Service, supra. Other
negotiable matters related to performance appraisal systems include
informing the union should management elect to conduct a study of
performance appraisals, requiring management to discuss a proposed
evaluation or appraisal with an employee prior to sending it to higher
level supervisor or reviewer, requiring that employees be evaluated
solely on duties contained in their position descriptions, and insisting
on uniform application of performance standards for identical duties in
similar circumstances. American Federation of Government Employees,
Local 3483 and Federal Home Loan Bank Board, New York District Office,
13 FLRA No. 80 (1983); National Federation of Federal Employees and
Department of the Army, Fort Monmouth, New Jersey, 13 FLRA No. 75
(1983); American Federation of Government Employees Council of Social
Security District Office Locals and Department of Health and Human
Services, Social Security Administration, 11 FLRA No. 103 (1983);
National Treasury Employees Union and Department of the Treasury, U.S.
Customs Service, 9 FLRA 983 (1983). Furthermore, a requirement that
performance standards for critical elements be objective and directly
related to an employee's position is negotiable. American Federation of
Government Employees, Local 2192 and Veterans Administration Regional
Office, St. Louis, Missouri, 9 FLRA 716 (1982). Thus, it is clear based
on the above that the impact and implementation of a form which was used
in evaluating a critical element of an employee's performance appraisal
was an appropriate matter for bargaining.
It is concluded that Respondent's implementation in October 1981 of
an instructor evaluation sheet to evaluate unit employees in connection
with a performance appraisal critical element without first notifying
the Union and affording it an opportunity to bargain over the impact and
implementation of such change in conditions of employment violated
sections 7116(a)(1) and (5) of the Statute, as alleged.
Based on the foregoing findings and conclusions, it is recommended
that the Authority issue the following Order:
ORDER
Pursuant to Section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and Section 7118 of the Statute, the
Authority hereby orders that the National Weather Service, Silver
Spring, Maryland, shall:
1. Cease and desist from:
(a) Changing any instructor evaluation sheet at the National
Weather Service Training Center, Kansas City, Missouri, or
otherwise changing existing terms and conditions of employment
with respect to evaluation forms used in conjunction with
performance appraisal systems, without first notifying the
National Weather Service Employees Organization (MEBA/AFL-CIO),
the exclusive bargaining representative of its employees, and
affording such representative the opportunity to bargain, upon
request, to the extent consonant with law.
(b) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute.
(a) Rescind the Instructor Evaluation Sheet implemented in
October 1981.
(b) Rescind and remove or expunge from its files all references
to ratings issued to bargaining unit employees as a result of the
implementation of the Instructor Evaluation Sheet at the National
Weather Service Training Center, Kansas City, Missouri.
(c) Notify the National Weather Service Employees Organization
(MEBA/AFL-CIO) the exclusive bargaining representative of its
employees, of any proposed change in existing terms and conditions
of employment with respect to evaluation forms used in conjunction
with performance appraisal systems, and, upon request, bargain in
good faith to the full extent consonant with law.
(d) Post at its facilities at the National Weather Service
Training Center, Kansas City, Missouri copies of the attached
Notice marked "Appendix" on forms to be furnished by the
Authority. Upon receipt of such forms, they shall be signed by
the Director, National Weather Service Training Center, and shall
be posted and maintained for 60 consecutive days thereafter, in
conspicuous places, including all bulletin boards and other places
where notices to employees are customarily posted. The Director
shall take reasonable steps to insure that such notices are not
altered, defaced, or covered by any other material.
(e) Pursuant to 5 C.F.R. Section 2423.30 notify the Regional
Director, Region VII, Federal Labor Relations Authority, Denver,
Colorado, in writing, within 30 days from the date of this Order,
as to what steps have been taken to comply herewith.
/s/ GARVIN LEE OLIVER
Administrative Law Judge
Dated: January 9, 1985
Washington, D.C.
FOOTNOTES$ --------
(1) The unopposed motions of the General Counsel and the Respondent
to correct the transcript are hereby granted. The transcript is
corrected as set forth therein.
(2) Respondent does not appear to contest the General Counsel's
assertion that the complaint meets the requirements of section
7118(a)(4)(B) and was, therefore, timely filed. In any event, I so
find.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT change the instructor evaluation sheets at the National
Weather Service Training Center, Kansas City, Missouri, or otherwise
change existing terms and conditions of employment with respect to a
performance appraisal system, without first notifying the National
Weather Service Employees Organization (MEBA/AFL-CIO), the exclusive
bargaining representative of our employees, and affording such
representative the opportunity to bargain, upon request, to the extent
consonant with law.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL rescind the Instructor Evaluation Sheet implemented in
October 1981.
WE WILL rescind and remove or expunge from our files all references
to ratings issued to bargaining unit employees as a result of the
implementation of the Instructor Evaluation Sheet in October 1981 at the
National Weather Service Training Center, Kansas City, Missouri.
WE WILL notify the National Weather Service Employees Organization
(MEBA/AFL-CIO), the exclusive representative of our employees, of any
proposed change in existing terms and conditions of employment with
respect to the evaluation forms used in conjunction with the performance
appraisal system, and, upon request, bargain in good faith to the full
extent consonant with law.
(Agency or Activity)
Dated: . . . By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region VII,
whose address is: 1531 Stout Street, Suite 301, Denver Colorado 80202
and whose telephone number is: (303) 837-5224, FTS-8-327-5224.